<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended JANUARY 28, 2000
---------------------------------------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from______________________________________
Commission file number 0-1667
--------------------------------------
BOB EVANS FARMS, INC.
--------------------------------------
(Exact name of registrant as specified
in its charter)
DELAWARE 31-4421866
- --------------------------------------------- -----------------------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
3776 SOUTH HIGH STREET COLUMBUS, OHIO 43207
- --------------------------------------------------------------------------------
(Address of principal executive offices)
(Zip Code)
(614) 491-2225
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and formal fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
As of the close of the period covered by this report, the registrant
had issued 42,638,118 common shares, of which 36,952,383 were outstanding.
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BOB EVANS FARMS, INC.
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
(Dollars in thousands)
JAN. 28, 2000 APRIL 30, 1999
------------- --------------
UNAUDITED AUDITED
--------- -------
<S> <C> <C>
ASSETS
- ------
Current assets
Cash and equivalents $ 4,871 $ 25,455
Accounts receivable 14,602 17,036
Inventories 15,362 14,299
Deferred income taxes 8,150 8,150
Prepaid expenses 2,171 1,697
--------- ---------
TOTAL CURRENT ASSETS 45,156 66,637
Property, plant and equipment 805,775 750,412
Less accumulated depreciation 276,439 257,043
--------- ---------
NET PROPERTY, PLANT AND EQUIPMENT 529,336 493,369
Other assets
Deposits and other 1,369 3,505
Long-term investments 11,529 8,331
Deferred income taxes 9,767 9,767
Cost in excess of net assets acquired 7,976 8,360
Other intangible assets 353 483
--------- ---------
TOTAL OTHER ASSETS 30,994 30,446
--------- ---------
$ 605,486 $ 590,452
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities
Line of credit $ 80,205 $ 25,000
Accounts payable 8,218 9,559
Dividends payable 3,326 3,626
Federal and state income taxes 947 896
Accrued wages and related liabilities 14,276 17,009
Other accrued expenses 36,081 44,919
--------- ---------
TOTAL CURRENT LIABILITIES 143,053 101,009
Long-term liabilities
Deferred compensation 4,019 1,190
Deferred income taxes 17,325 17,325
Notes payable (net of discount of $47 at
Jan. 28, 2000, and $97 at April 30, 1999) 883 833
--------- ---------
TOTAL LONG-TERM LIABILITIES 22,227 19,348
Stockholders' equity
Common stock, $.01 par value; authorized 100,000,000
shares; issued 42,638,118 shares at Jan. 28, 2000,
and April 30, 1999 426 426
Preferred stock, authorized 1,200 shares; issued 120
shares at Jan. 28, 2000, and April 30, 1999 60 60
Capital in excess of par value 149,589 151,364
Retained earnings 398,407 366,924
Treasury stock, 5,685,735 shares at Jan. 28, 2000,
and 2,353,332 shares at April 30, 1999, at cost (108,276) (48,679)
--------- ---------
TOTAL STOCKHOLDERS' EQUITY 440,206 470,095
--------- ---------
$ 605,486 $ 590,452
========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
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CONDENSED CONSOLIDATED STATEMENTS OF INCOME
UNAUDITED
---------
<TABLE>
<CAPTION>
(Dollars in thousands, except per share amounts)
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
JAN. 28, 2000 JAN. 29, 1999 JAN. 28, 2000 JAN. 29, 1999
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
NET SALES $ 236,294 $ 250,530 $ 725,650 $ 730,195
Cost of sales 67,562 69,490 205,395 208,131
Operating wage and fringe benefit expenses 78,963 78,885 240,155 228,766
Other operating expenses 32,717 33,502 103,101 98,722
Selling, general and administrative expenses 28,226 37,097 84,190 98,812
Depreciation expense 8,972 8,646 26,110 25,420
--------- --------- --------- ---------
OPERATING INCOME 19,854 22,910 66,699 70,344
Net interest expense (272) (244) (292) (852)
--------- --------- --------- ---------
INCOME BEFORE INCOME TAXES 19,582 22,666 66,407 69,492
PROVISIONS FOR INCOME TAXES
Federal 5,921 6,845 20,062 20,987
State 1,333 1,541 4,517 4,725
--------- --------- --------- ---------
7,254 8,386 24,579 25,712
--------- --------- --------- ---------
NET INCOME $ 12,328 $ 14,280 $ 41,828 $ 43,780
========= ========= ========= =========
EARNINGS PER SHARE - BASIC $ 0.33 $ 0.35 $ 1.07 $ 1.06
========= ========= ========= =========
EARNINGS PER SHARE - DILUTED $ 0.33 $ 0.34 $ 1.07 $ 1.05
========= ========= ========= =========
CASH DIVIDENDS PER SHARE $ 0.09 $ 0.09 $ 0.27 $ 0.26
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements
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CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
UNAUDITED
<TABLE>
<CAPTION>
(Dollars in thousands)
NINE MONTHS ENDED
-----------------
JAN. 28, 2000 JAN. 29, 1999
------------- -------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 41,828 $ 43,780
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 26,935 26,319
Loss (Gain) on sale of property and equipment (96) 121
Deferred compensation 2,726 0
Compensation expense attributable to stock plans 740 1,309
Cash provided by (used for) current assets
and current liabilities:
Accounts receivable 2,434 1,165
Inventories (1,063) (941)
Prepaid expenses (474) (678)
Accounts payable (1,341) 221
Federal and state income taxes 51 1,581
Accrued wages and related liabilities (2,733) (2,397)
Other accrued expenses (9,514) 6,015
-------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 59,493 76,495
INVESTING ACTIVITIES:
Purchase of property, plant and equipment (68,045) (37,673)
Purchase of long-term investments (3,509) (2,296)
Proceeds from sale of property, plant and equipment 6,029 150
Other 2,136 122
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (63,389) (39,697)
FINANCING ACTIVITIES:
Cash dividends paid (10,645) (10,385)
Line of credit 55,205 (12,905)
Purchase of treasury stock (62,344) (27,143)
Interest accrued on long-term notes 50 70
Distribution of treasury stock
due to the exercise of stock
options and employee bonuses 1,046 10,005
-------- --------
NET CASH USED IN FINANCING ACTIVITIES (16,688) (40,358)
======== ========
Decrease in cash and equivalents (20,584) (3,560)
Cash and equivalents at the beginning of the period 25,455 15,397
-------- --------
Cash and equivalents at the end of the period $ 4,871 $ 11,837
======== ========
</TABLE>
The accompanying notes are an integral part of the financial statements.
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NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
UNAUDITED
---------
1. UNAUDITED FINANCIAL STATEMENTS
The accompanying unaudited financial statements are presented in
accordance with the requirements of Form 10-Q and, consequently, do not
include all of the disclosures normally required by generally accepted
accounting principles, or those normally made in the company's Form
10-K filing. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair
presentation have been included. No significant changes have occurred
in the disclosures made in Form 10-K for the fiscal year ended April
30, 1999 (refer to Form 10-K for a summary of significant accounting
policies followed in the preparation of the consolidated financial
statements).
2. EARNINGS PER SHARE
Basic earnings per share computations are based on the weighted-average
number of shares of common stock outstanding during the period
presented. Diluted earnings per share calculations reflect the assumed
exercise and conversion of employee stock options.
The numerator in calculating both basic and diluted earnings per share
for each period is reported net income. The denominator is based on the
following weighted-average number of common shares outstanding:
<TABLE>
<CAPTION>
(in thousands)
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
Jan. 28, 2000 Jan. 29, 1999 Jan. 28, 2000 Jan. 29, 1999
------------------- -----------------------------------------------------------
<S> <C> <C> <C> <C>
Basic 37,809 41,168 38,915 41,407
Effect of dilutive
stock options 92 382 169 321
------ ------ ------ ------
Diluted 37,901 41,550 39,084 41,728
====== ====== ====== ======
</TABLE>
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3. INDUSTRY SEGMENTS
The company's operations include restaurant operations and the
processing and sale of food and related products. The revenues from
these segments include both sales to unaffiliated customers and
intersegment sales, which are accounted for on a basis consistent with
sales to unaffiliated customers. Intersegment sales and other
intersegment transactions have been eliminated in the consolidated
financial statements. Information on the company's operating segments
is summarized as follows:
<TABLE>
<CAPTION>
(in thousands)
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
Jan. 28, 2000 Jan. 29, 1999 Jan. 28, 2000 Jan. 29, 1999
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Sales
Restaurant Operations $ 178,294 $ 176,738 $ 564,653 $ 533,903
Food Products 64,895 82,060 182,245 221,158
--------- --------- --------- ---------
243,189 258,798 746,898 755,061
Intersegment sales of food products (6,895) (8,268) (21,248) (24,866)
--------- --------- --------- ---------
Total $ 236,294 $ 250,530 $ 725,650 $ 730,195
========= ========= ========= =========
Operating Income
Restaurant Operations $ 14,059 $ 13,953 $ 52,492 $ 50,890
Food Products 5,795 8,957 14,207 19,454
--------- --------- --------- ---------
Total $ 19,854 $ 22,910 $ 66,699 $ 70,344
========= ========= ========= =========
</TABLE>
4. RECLASSIFICATIONS
Certain prior period amounts have been reclassified to conform to the
current classification.
5. NEW ACCOUNTING STANDARDS
In 1998, the FASB issued SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities. SFAS No. 133 requires an entity to
recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair
value. Gains or losses resulting from changes in the values of those
derivatives would be accounted for depending on the use of the
derivative and whether it qualifies for hedge accounting. The company
is currently assessing the impact of this statement on the company's
consolidated financial statements and plans to adopt SFAS No. 133 in
fiscal 2002.
6. FISCAL PERIODS
The third quarter of fiscal 2000 was comprised of 13 weeks versus 14
weeks in fiscal 1999. The nine-month data represents 39 weeks of
activity versus 40 weeks in fiscal 1999.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
During the fourth quarter of fiscal 1999, the company sold its salad
production and charcoal manufacturing businesses. Therefore, certain comparisons
of the third quarter of fiscal 2000 to the same period in fiscal 1999 have been
adjusted to exclude the effect of the businesses sold. The company's results of
operations for the third quarter of fiscal 1999 included net sales and operating
losses of $9.7 million and $99,000, respectively, from the divested businesses.
For the first nine months of fiscal 1999, the company's results of operations
included net sales and operating income of $34.6 million and $48,000,
respectively, from the divested businesses. In addition, the third quarter and
year-to-date periods in fiscal 2000 included one less week of operations than
the corresponding periods in fiscal 1999.
SALES
Consolidated net sales for Bob Evans Farms, Inc. and subsidiaries
decreased $14.2 million, or 5.7%, for the third quarter ended January 28, 2000,
compared to the corresponding quarter a year ago. Restaurant segment sales
accounted for approximately 75% of total sales in the third quarter of fiscal
2000. For the nine-month period ended January 28, 2000, consolidated net sales
decreased $4.5 million, or 0.6%, compared to the same period last year.
Excluding the divested businesses, consolidated net sales decreased $4.5
million, or 1.9%, for the third quarter of fiscal 2000 and increased $30.1
million, or 4.3%, through nine months compared to a year ago.
The restaurant segment's sales increased $1.6 million (0.9%) in the
third quarter due to an increase in same-store sales and additional restaurants
in operation, partially offset by the effect of the extra week of sales in
fiscal 1999. Same-store sales increased 3.0% in the third quarter, excluding the
effect of the extra week in fiscal 1999. The same-store sales increase,
inclusive of an average menu price increase of 2.3%, reflects the continued
trend of same-store sales gains since the third quarter of fiscal 1997.
Additional sales growth was provided by an increase in the number of operating
locations: 431 restaurants in operation at the end of the third quarter this
year versus 412 a year earlier.
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The chart below summarizes the restaurant openings and closings during
the last seven quarters:
Beginning Opened Closed Ending
------------------------------------------------------
Fiscal 2000
1st quarter 424 1 1 424
2nd quarter 424 7 2 429
3rd quarter 429 8 6 431
Fiscal 1999
1st quarter 408 0 1 407
2nd quarter 407 2 1 408
3rd quarter 408 5 1 412
4th quarter 412 13 1 424
The company expects to open 10 restaurants in the last quarter of
fiscal 2000.
The food products segment sales, excluding the divested businesses,
decreased $6.1 million, or 9.4%, for the third quarter and $0.7 million, or
0.4%, through nine months compared to the corresponding periods a year ago. This
decrease was due mostly to a decline in sausage sales volume as comparable
pounds of sausage products sold were down 8.8% for the quarter (1.8% excluding
the effect of the extra week in fiscal 1999).
COST OF SALES
Consolidated cost of sales (cost of materials) was 28.6% of sales in
the third quarter of fiscal 2000 compared to 27.7% of sales in the third quarter
of fiscal 1999. Year-to-date, consolidated cost of sales represented 28.3% of
sales versus 28.5% last fiscal year.
In the restaurant segment, food cost (cost of sales) was more favorable
at 24.8% of sales in the third quarter and 25.3% of sales year-to-date, versus
25.7% and 25.8%, respectively, in the corresponding periods last year.
In the food products segment, excluding Mrs. Giles and Hickory, cost of
sales increased to 41.0% of sales for the quarter and 39.5% year-to-date
compared to 31.1% and 34.3%, respectively, for the corresponding periods a year
ago. This increase was mainly due to hog costs averaging $34.46 per
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<PAGE> 9
hundredweight for the third quarter of fiscal 2000 versus $21.03 per
hundredweight in the same period last year, a 63.9% increase.
OPERATING WAGE AND FRINGE BENEFIT EXPENSES
Consolidated operating wage and fringe benefit expenses were 33.4% of
sales in the third quarter of fiscal 2000 compared to 31.5% of sales in the
third quarter of fiscal 1999. Year-to-date, consolidated operating wage and
fringe benefit expenses represented 33.1% of sales versus 31.3% last fiscal
year.
In the restaurant segment, operating wage and fringe benefit expenses
represented 40.5% of sales for the quarter and 39.1% of sales year-to-date
versus 39.8% and 38.4%, respectively, for the corresponding periods a year ago.
In the food products segment (excluding Mrs. Giles and Hickory), operating wage
and fringe benefit expenses represented 11.4% of sales for the quarter and 12.1%
of sales year-to-date versus 10.6% and 11.3%, respectively, of sales for the
corresponding periods a year ago. Higher hourly wages and higher health
insurance expense contributed to the increase in both segments' ratios.
OTHER OPERATING EXPENSES
Over 90% of other operating expenses occurred in the restaurant
segment; the most significant components of which were advertising, utilities,
restaurant supplies, repair and maintenance, taxes (other than income taxes) and
credit card processing fees. Consolidated other operating expenses represented
13.8% of sales for the quarter and 14.2% year-to-date for fiscal 2000 versus
13.4% for the quarter and 13.5% year-to-date a year ago. The increase was due
mostly to higher advertising expense, restaurant supplies and credit card
processing fees.
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<PAGE> 10
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Consolidated selling, general and administrative expenses represented
11.9% of sales for the quarter and 11.6% of sales year-to-date in comparison to
14.8% and 13.5%, respectively, in the corresponding periods a year ago. The most
significant components of selling, general and administrative expenses were
wages and fringe benefits and food products segment promotional and advertising
expenses. The decrease was due mostly to less promotional expenses for food
products.
LIQUIDITY AND CAPITAL RESOURCES
Cash generated from both the restaurant and food products segments has
been used as the main source of working capital and capital expenditure
requirements. Bank lines of credit were also used for liquidity needs and
capital expansion at various times. The total bank lines of credit available is
$125.0 million, of which $80.2 million was outstanding at January 28, 2000.
The company believes that funds needed for capital expenditures and
working capital during the remainder of fiscal 2000 will be generated both
internally and from available bank lines of credit. Longer-term financing
alternatives will continue to be evaluated by the company as conditions warrant.
IMPACT OF YEAR 2000
In prior years, the Company discussed the nature and progress of its
plans to become Year 2000 ready. In late 1999, the Company completed its
remediation and testing of systems. As a result of those planning and
implementation efforts, the Company experienced no significant disruptions in
mission critical information technology and non-information technology systems
and believes those systems successfully responded to the Year 2000 date change.
The Company expensed less than $500,000 to date in connection with remediating
its systems. The Company is not aware of any material problems resulting from
Year 2000 issues, either with its products, its internal systems, or the
products and services of third parties. The Company will continue to monitor its
mission critical computer applications and those of its suppliers and vendors
throughout the year 2000 to ensure that any latent Year 2000 matters that may
arise are addressed promptly.
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<PAGE> 11
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
The statements contained in this report which are not historical fact are
"forward-looking statements" that involve various important assumptions, risks,
uncertainties and other factors which could cause the company's actual results
for fiscal 2000 and beyond to differ materially from those expressed in such
forward-looking statements. These important factors include, without limitation,
changes in hog costs and the possibility of severe weather conditions where the
company operates its restaurants, as well as other risks previously disclosed in
the company's securities filings and press releases.
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<PAGE> 12
PART II - OTHER INFORMATION
ITEM 5. OTHER INFORMATION
As discussed in the company's Proxy Statement for the 1999 Annual
Meeting of Stockholders, any qualified stockholder of the company who intends to
submit a proposal at the 2000 Annual Meeting of Stockholders (the "2000 Annual
Meeting") must submit such proposal to the company not later than April 11, 2000
to be considered for inclusion in the company's Proxy Statement and form of
Proxy (the "Proxy Materials") relating to that meeting. If a stockholder intends
to present a proposal at the 2000 Annual Meeting of Stockholders, but has not
sought the inclusion of such proposal in the company's Proxy Materials, such
proposal must be received by the company prior to June 27, 2000 or the company's
management proxies for the 2000 Annual Meeting will be entitled to use their
discretionary voting authority should such proposal then be raised, without any
discussion of the matter in the company's Proxy Materials.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3(a). Amended and Restated By-Laws. The Amended and Restated
By-Laws were adopted by the Board of Directors on February
7, 2000.
27. Financial Data Schedule
(b) Reports on Form 8-K
none
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Bob Evans Farms, Inc.
--------------------------------------
Registrant
/s/ Daniel E. Evans
--------------------------------------
Daniel E. Evans
Chairman of the Board
(Chief Executive Officer)
/s/ Donald J. Radkoski
--------------------------------------
Donald J. Radkoski
Group Vice President and Treasurer
(Chief Financial Officer)
MARCH 10, 2000
- ----------------------
Date
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<PAGE> 1
EX 3(a)
AMENDED AND RESTATED BY-LAWS
OF
BOB EVANS FARMS, INC.
INDEX
ARTICLE I...............................................16
OFFICES.................................................16
Section 1.01. Registered Office..........................................16
Section 1.02. Business Offices...........................................16
ARTICLE II..............................................16
MEETINGS OF STOCKHOLDERS................................16
Section 2.01. Place of Meetings..........................................16
Section 2.02. Annual Meetings............................................16
Section 2.03. Notice of Annual Meeting...................................16
Section 2.04. List of Stockholders.......................................16
Section 2.05. Special Meetings...........................................17
Section 2.06. Notice of Special Meetings.................................17
Section 2.07. Business Transacted at Special Meetings....................17
Section 2.08. Quorum.....................................................17
Section 2.09. Vote Required..............................................18
Section 2.10. Voting Rights; Proxies.....................................18
Section 2.11. Action Without Meeting.....................................18
ARTICLE III.............................................18
DIRECTORS...............................................18
Section 3.01. Number of Directors........................................18
Section 3.02. Vacancies..................................................19
Section 3.03. Authority of Board of Directors............................20
Section 3.04. Nomination.................................................20
Section 3.05. Place of Meetings..........................................21
Section 3.06. Regular Meetings...........................................21
Section 3.07. Special Meetings...........................................22
Section 3.08. Quorum.....................................................22
Section 3.09. Action Without Meeting.....................................22
Section 3.10. Committees of Directors....................................22
Section 3.11. Committee Minutes..........................................23
Section 3.12. Compensation of Directors..................................23
Section 3.13. Removal....................................................24
ARTICLE IV..............................................24
NOTICES.................................................24
Section 4.01. Form of Notice.............................................24
Section 4.02. Waiver of Notice...........................................25
ARTICLE V...............................................25
OFFICERS................................................25
Section 5.01. Officers...................................................25
Section 5.02. Additional Officers and Agents.............................25
Section 5.03. Compensation...............................................25
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<PAGE> 2
Section 5.04. Term; Removal of Officers...................................25
Section 5.05. Duties of the Chairman of the Board.........................26
Section 5.06. Duties of the Chief Executive Officer.......................26
Section 5.07. Duties of the President and Chief Operating Officer.........26
Section 5.08. Duties of the Vice-Presidents...............................27
Section 5.09. Duties of the Secretary.....................................27
Section 5.10. Duties of the Assistant Secretary...........................27
Section 5.11. Duties of the Treasurer.....................................28
Section 5.12. Duties of the Assistant Treasurer...........................28
ARTICLE VI...............................................29
STOCK AND STOCKHOLDERS...................................29
Section 6.01. Certificates................................................29
Section 6.02. Lost Certificates...........................................29
Section 6.03. Record Date.................................................29
Section 6.04. Registered Stockholders.....................................30
Section 6.05. Transfers...................................................30
ARTICLE VII..............................................31
GENERAL PROVISIONS.......................................31
Section 7.01. Dividends...................................................31
Section 7.02. Annual Statement............................................31
Section 7.03. Checks......................................................31
Section 7.04. Fiscal Year.................................................31
Section 7.05. Seal........................................................31
ARTICLE VIII.............................................32
AMENDMENTS...............................................32
Section 8.01. Amendments..................................................32
ARTICLE IX...............................................32
INDEMNIFICATION..........................................32
Section 9.01. Indemnification as of Right for Directors and Officers......32
Section 9.02. Enforcement.................................................33
Section 9.03. Discretionary Indemnification for Agents and Employees......34
Section 9.04. Article IX Exclusive........................................34
Section 9.05. Continuation of Indemnification.............................34
Section 9.06. Insurance...................................................35
Section 9.07. Certain Definitions.........................................35
Section 9.08. Severability................................................35
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<PAGE> 3
AMENDED AND RESTATED BY-LAWS
OF
BOB EVANS FARMS, INC.
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<PAGE> 4
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
SECTION 1.02. BUSINESS OFFICES. The corporation may also have
offices at such other places both within and without the State of Delaware as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. PLACE OF MEETINGS. All meetings of the
stockholders shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting.
SECTION 2.02. ANNUAL MEETINGS. Annual meetings of stockholders
for the purpose of electing directors and for the transaction of such other
proper business as may come before such meetings shall be held on the second
Monday in September if not a legal holiday, and if a legal holiday, then on the
next day following, or on such other date as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting.
SECTION 2.03. NOTICE OF ANNUAL MEETING. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.
SECTION 2.04. LIST OF STOCKHOLDERS. The officer who has charge
of the stock ledger of the corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such
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<PAGE> 5
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held which place shall be specified in the notice of the
meeting, or, if not so specified, at the corporation's principal office. The
list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the chief
executive officer and shall be called by the chief executive officer or
secretary at the request in writing of two-thirds of the board of directors or
of the holders of a majority of the stock issued and outstanding and entitled to
vote on the date such request was received by the corporation. Such request
shall state the purpose or purposes of the proposed meeting.
SECTION 2.06. NOTICE OF SPECIAL MEETINGS. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
nor more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
SECTION 2.07. BUSINESS TRANSACTED AT SPECIAL MEETINGS.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
SECTION 2.08. QUORUM. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting
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at which a quorum shall be present or represented any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
SECTION 2.09. VOTE REQUIRED. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of the statutes or of the certificate of incorporation or by-laws a different
vote is required in which case such express provision shall govern and control
the decision of such question.
SECTION 2.10. VOTING RIGHTS; PROXIES. Unless otherwise
provided in the certificate of incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy for
each share of the capital stock having voting power held by such stockholder,
but no proxy shall be voted on after eleven months from its date, unless the
proxy provides for a longer period.
SECTION 2.11. ACTION WITHOUT MEETING. Unless otherwise
provided in the certificate of incorporation, any action required to be taken at
any annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by all of the
holders of outstanding stock who would be entitled to notice of such meeting.
ARTICLE III
DIRECTORS
SECTION 3.01. NUMBER OF DIRECTORS. The number of directors of
the corporation shall be not less than nine (9) nor more than fifteen (15).
Initially there shall be nine (9) directors and thereafter
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the number of directors shall be as provided from time to time in the by-laws,
provided that no amendment to the by-laws decreasing the number of directors
shall have the effect of shortening the term of any incumbent director, and
provided further that no action shall be taken by the directors (whether through
amendment of the by-laws or otherwise) to increase the number of directors as
provided in the by-laws from time to time unless at least eighty percent (80%)
of the directors then in office shall concur in said action. Directors need not
be stockholders.
Commencing with the election of directors at the 1986 annual
meeting of stockholders, the board of directors shall be divided into three
classes, designated class I, class II and class III, as nearly equal in number
as possible, and the term of office of directors in one class shall expire at
each annual meeting of stockholders, and in all cases as to each director until
a successor shall be elected and shall qualify, or until his earlier
resignation, removal from office, death or incapacity. Additional directorships
resulting from an increase in number of directors shall be apportioned among the
classes as equally as possible. The initial term of office of directors of class
I shall expire at the annual meeting of stockholders in 1987, that of class II
shall expire at the annual meeting of stockholders in 1988, and that of class
III shall expire at the annual meeting of stockholders in 1989, and in all cases
as to each director until a successor shall be elected and shall qualify, or
until his earlier resignation, removal from office, death or incapacity. At each
annual meeting of stockholders the number of directors equal to the number of
directors of the class whose term expires at the time of such meeting (or, if
less, the number of directors properly nominated and qualified for election)
shall be elected to hold office until the third succeeding annual meeting of
stockholders after their election.
SECTION 3.02. VACANCIES. Vacancies and newly-created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, or by a sole
remaining director, and the directors so chosen shall hold office until the next
election of the class for which such directors shall have been chosen and until
their successors are duly elected and shall
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qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute.
SECTION 3.03. AUTHORITY OF BOARD OF DIRECTORS. The business of
the corporation shall be managed by or under the direction of its board of
directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
SECTION 3.04. NOMINATION. Only persons who are nominated in
accordance with the procedures set forth in these by-laws shall be eligible to
serve as directors. Nominations of persons for election to the board may be made
at a meeting of stockholders (a) by or at the direction of the board of
directors or (b) by any stockholder of the corporation who (i) is a stockholder
of record as of the record date for the annual meeting of stockholders, (ii) is
entitled to vote for the election of directors at such meeting and (iii)
complies with the notice procedures set forth in this Section 3.04. Such
nominations, other than those made by or at the direction of the board, shall be
made pursuant to timely notice in writing to the secretary of the corporation.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than
sixty nor more than ninety days prior to the meeting; provided, however, that in
the event that less than seventy days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the meeting or
such public disclosure was made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); and (b) as to the stockholder giving the notice (i) the
name and address, as they appear on the
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corporation's books, of such stockholder and (ii) the class and number of shares
of the corporation which are beneficially owned by such stockholder. At the
request of the board, any person nominated by the board for election as a
director shall furnish to the secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible to serve as a director of the
corporation unless nominated in accordance with the procedures set forth in
these by-laws. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws and that the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 3.04, a stockholder shall also comply with all applicable
requirements of the Securities and Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set forth in this
Section 3.04.
SECTION 3.05. PLACE OF MEETINGS. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 3.06. REGULAR MEETINGS. A regular meeting of the board
of directors shall be held immediately after the annual meeting of stockholders
at the same place as such annual meeting is held and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event such meeting is
not held at the time and place provided herein, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors. Other regular meetings of the
board of directors may be held without notice at such time and at such place as
shall from time to time be determined by the board. Unless otherwise restricted
by the certificate of incorporation or these by-laws, members of the board of
directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications
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equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
SECTION 3.07. SPECIAL MEETINGS. Special meetings of the board
of directors may be called by the chairman of the board, the chief executive
officer or the president and chief operating officer on three days' notice to
each director, either personally or by mail, telephone or facsimile
transmission; special meetings shall be called by the chairman of the board, the
chief executive officer, the president and chief operating officer or the
secretary in like manner and on like notice on the written request of two
directors.
SECTION 3.08. QUORUM. At all meetings of the board of
directors a majority of the directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting of
the board of directors the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
SECTION 3.09. ACTION WITHOUT MEETING. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the board of directors or of
any committee thereof may be taken without a meeting, if all members of the
board of directors or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
board of directors or committee.
SECTION 3.10. COMMITTEES OF DIRECTORS. The board of directors
may, by resolution passed by a majority of the whole board, designate one or
more committees, each committee to consist of not less than three directors of
the corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
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In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution
of the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution; and, unless the
resolution or the certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
SECTION 3.11. COMMITTEE MINUTES. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
SECTION 3.12. COMPENSATION OF DIRECTORS. Unless otherwise
restricted by the certificate of incorporation or these by-laws, the board of
directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
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SECTION 3.13. REMOVAL. Notwithstanding any other provisions of
the certificate of incorporation or the by-laws of the corporation (and
notwithstanding the fact that some lesser percentage may be specified by law,
the certificate of incorporation or the by-laws of the corporation), any
director or the entire board of directors of the corporation may be removed from
office at any time, with or without cause, but only by the affirmative vote of
the holders of at least eighty percent (80%) of all of the outstanding shares of
capital stock of the corporation entitled to vote on the election of directors
at a meeting of stockholders called for that purpose, except that if the board
of directors, by an affirmative vote of at least two-thirds (66 2/3%) of the
entire board of directors, recommends removal of a director to the stockholders,
such removal may be effected by the affirmative vote of the holders of at least
a majority of the outstanding shares of capital stock of the corporation
entitled to vote on the election of directors at a meeting of stockholders for
that purpose.
ARTICLE IV
NOTICES
SECTION 4.01. FORM OF NOTICE. Whenever, under the provisions
of the statutes or of the certificate of incorporation or of these by-laws,
notice is required to be given to any stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail.
Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director, such notice may be given personally or by telephone or
facsimile transmission, or given in a writing, addressed to such director, at
his address as it
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appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail.
SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is
required to be given under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
SECTION 5.01. OFFICERS. The officers of the corporation shall
be chosen by the board of directors and shall be a chairman of the board, a
chief executive officer, a president and chief operating officer, a
vice-president, a secretary and a treasurer. The chairman of the board must be a
director. The board of directors may also choose additional officers,
vice-presidents (including senior, executive or assistant vice-presidents), and
one or more assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provides.
SECTION 5.02. ADDITIONAL OFFICERS AND AGENTS. The board of
directors may appoint such other officers and agents as it shall deem necessary
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board.
SECTION 5.03. COMPENSATION. The salaries of all officers and
agents of the corporation shall be fixed by the board of directors.
SECTION 5.04. TERM; REMOVAL OF OFFICERS. The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer elected or appointed by the board of
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directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
SECTION 5.05. DUTIES OF THE CHAIRMAN OF THE BOARD. The
chairman of the board shall preside at all meetings of the directors at which he
is present. The chairman shall have such other powers and duties as the
directors shall from time to time assign to him.
SECTION 5.06. DUTIES OF THE CHIEF EXECUTIVE OFFICER. The chief
executive officer of the corporation shall be the senior executive of the
corporation and shall have general control and management of the business
affairs and policies of the corporation. Among other things, he shall direct and
coordinate the development of short-range and long-range goals and objectives,
policies, budgets and operating plans of the corporation and, upon approval by
the board of directors, oversee their interpretation, implementation and
achievement. In conjunction with the board of directors, the chief executive
officer shall establish an organizational hierarchy and delegate authority to
other executives regarding policies, contractual commitments, expenditures and
personnel matters. He shall represent the corporation to its stockholders, the
financial community, industry groups, key customers, governmental
representatives and regulatory agencies and the general public.
If there is no chairman of the board, or during the absence or
disability of the chairman of the board, the chief executive officer shall
exercise all of the powers and discharge all of the duties of the chairman of
the board. If there is no president and chief operating officer, or during the
absence or disability of the president and chief operating officer, the chief
executive officer shall exercise all of the powers and discharge all of the
duties of the president and chief operating officer. The chief executive officer
shall have such other powers and perform such other duties as from time to time
may be conferred upon him by the board of directors.
SECTION 5.07. DUTIES OF THE PRESIDENT AND CHIEF OPERATING
OFFICER. The president and chief operating officer of the corporation shall
direct and coordinate the activities of the corporation in accordance with the
goals, objectives, policies, budgets and operating plans of the corporation
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established by the chief executive officer and the board of directors. He also
shall be responsible for the achievement of short-range and long-range goals and
objectives for the operations, human resources, financial performance and growth
of the corporation. If there is no chief executive officer or during the absence
or disability of the chief executive officer, the president and chief operating
officer shall exercise all of the powers and discharge all of the duties of the
chief executive officer. The president and chief operating officer shall have
such other powers and perform such other duties as from time to time may be
conferred upon him by the board of directors.
SECTION 5.08. DUTIES OF THE VICE-PRESIDENTS. The
vice-presidents shall perform such duties and have such powers as the board of
directors may from time to time prescribe.
SECTION 5.09. DUTIES OF THE SECRETARY. The secretary shall
attend all meetings of the board of directors and all meetings of the
stockholders and record all the proceedings of the meetings of the corporation
and of the board of directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the chief executive officer or the
president and chief operating officer, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
SECTION 5.10. DUTIES OF THE ASSISTANT SECRETARY. The assistant
secretary, or if there be more than one, the assistant secretaries in the order
determined by the board of directors (or if there be no such determination, then
in the order of their election) shall, in the absence of the secretary or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the secretary and
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shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
SECTION 5.11. DUTIES OF THE TREASURER. The treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated
by the board of directors.
He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the chief executive officer and the board of
directors, at its regular meetings, or when the board of directors so requires,
an account of all his transactions as treasurer and of the financial condition
of the corporation.
If required by the board of directors, he shall give the
corporation a bond (which shall be renewed each year) in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
SECTION 5.12. DUTIES OF THE ASSISTANT TREASURER. The assistant
treasurer, or if there shall be more than one, the assistant treasurers in the
order determined by the board of directors (or if there be no such
determination, then in the order of their election) shall, in the absence of the
treasurer or in the event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
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ARTICLE VI
STOCK AND STOCKHOLDERS
SECTION 6.01. CERTIFICATES. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman of the board of directors, or the president
and chief operating officer or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation.
Any of or all the signatures on the certificate may be facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
SECTION 6.02. LOST CERTIFICATES. The board of directors
(through the corporation's duly authorized officers) may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors (through the corporation's duly authorized officers) may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 6.03. RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of
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such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
SECTION 6.04. REGISTERED STOCKHOLDERS. The corporation shall
be entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
SECTION 6.05. TRANSFERS. Where a certificate evidencing stock
of the corporation is presented to the corporation or its proper agents with a
request to register transfer, the transfer shall be registered as requested if:
1. An appropriate person signs on each certificate so
presented or signs on a separate document an assignment or transfer of shares
evidenced by each such certificate, or signs a power to assign or transfer such
shares, or when the signature of an appropriate person is written without more
on the back of each such certificate; and
2. Reasonable assurance is given that the indorsement
of each appropriate person is genuine and effective; the corporation or
its agents may refuse to register a transfer of shares unless the
signature of each appropriate person is guaranteed by an "eligible
guarantor institution" as defined in Rule 17Ad-15 under the Securities
Act of 1934 or any successor rule or regulation; and
3. All applicable laws relating to the collection of transfer
or other taxes have been complied with; and
4. The corporation or its agents are not otherwise
required or permitted to refuse to register such transfer.
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ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01. DIVIDENDS. Dividends upon the capital stock of
the corporation, subject to the provisions of the certificate of incorporation,
if any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, deem proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall deem conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 7.02. ANNUAL STATEMENT. The board of directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
SECTION 7.03. CHECKS. All checks or demands for money and
notes of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
designate.
SECTION 7.04. FISCAL YEAR. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
SECTION 7.05. SEAL. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
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ARTICLE VIII
AMENDMENTS
SECTION 8.01. AMENDMENTS. These by-laws may be amended or
repealed by the board of directors pursuant to the certificate of incorporation
or by affirmative vote of the holders of record of shares entitling them to
exercise a majority of the voting power on such proposal: provided, however,
that the provisions set forth in this Article VIII, in Article II, Sections 2.05
and 2.08 and in Article III, Sections 3.01 and 3.13, herein may not be repealed
or amended in any respect unless such action is approved by the affirmative vote
of the holders of eighty percent (80%) of the stock issued and outstanding and
entitled to vote thereon.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. INDEMNIFICATION AS OF RIGHT FOR DIRECTORS AND
OFFICERS. Each director or officer of the corporation who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent permitted
by Delaware Law against all expense, liability and loss (including attorneys'
fees, judgments, fines, taxes, penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith;
PROVIDED, HOWEVER, that, except as provided in Section 9.02 hereof
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with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the board. The right to indemnification conferred in
this Section 9.01 shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); PROVIDED, HOWEVER, that,
if Delaware Law so requires, expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be advanced only upon delivery to the
corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under this Section 9.01 or otherwise.
SECTION 9.02. ENFORCEMENT. If a claim under Section 9.01 is
not paid in full by the corporation within sixty days after a written claim has
been received by the corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall also be entitled to be paid the expense of prosecuting or defending such
suit. It shall be a defense of the corporation in any suit brought by an
indemnitee to enforce a right to indemnification hereunder (but not in a suit to
enforce a right to an advancement of expenses) that the indemnitee has not met
the applicable standard of conduct set forth in Delaware Law, and a final
adjudication that an indemnitee has not met such standard shall entitle the
corporation to recover such expenses pursuant to the terms of an undertaking.
Neither the failure of the corporation (including the Board, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification
-33-
<PAGE> 22
of the indemnitee is proper in the circumstances because the indemnitee has met
the applicable standard of conduct set forth in Delaware Law, nor an actual
determination by the corporation (including the Board, independent legal counsel
or its stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the corporation to recover an advancement of expenses, the burden of
proving that the indemnitee is not entitled to be indemnified in any respect, or
to such advancement of expenses, under this Article IX or otherwise shall be on
the corporation.
SECTION 9.03. DISCRETIONARY INDEMNIFICATION FOR AGENTS AND
EMPLOYEES. The corporation may, to the extent approved or ratified from time to
time by the board, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the corporation to the fullest extent
contemplated by this Article IX with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
SECTION 9.04. ARTICLE IX EXCLUSIVE. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other sections
of this Article IX shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the corporation's or any other corporation's certificate of incorporation or
by-laws, other charter documents, agreement, vote of stockholders or
disinterested directors or otherwise, or under Delaware Law or any other
applicable statute or regulation, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
SECTION 9.05. CONTINUATION OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article IX shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person, except in any such case to the
extent that any grant of rights to
-34-
<PAGE> 23
indemnification and advancement of expenses pursuant to Section 9.03 otherwise
provides, and shall be binding upon any successor to the corporation to the
fullest extent permitted by Delaware Law, as from time to time in effect.
SECTION 9.06. INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under the
provisions of this Article IX or Delaware Law.
SECTION 9.07. CERTAIN DEFINITIONS. For purposes of this
Article, references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to a director or officer of
the corporation "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants, or beneficiaries. For
purposes of determining whether a person has met the applicable standard of
conduct set forth in Delaware Law, a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation."
SECTION 9.08. SEVERABILITY. In the event that any provision of
this Article IX is determined by a court of competent jurisdiction to require
the corporation to do or to fail to do an act which is in violation of
applicable law, such provision shall be limited or modified in its application
to the minimum extent necessary to avoid a violation of law, and, as so limited
or modified, such provision and the balance of this Article IX shall be
enforceable by an indemnitee in accordance with its terms.
-35-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF INCOME OF BOB EVANS
FARMS, INC. AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q FOR
THE PERIOD ENDED JANUARY 28, 2000.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> APR-28-2000
<PERIOD-START> MAY-01-1999
<PERIOD-END> JAN-28-2000
<EXCHANGE-RATE> 1
<CASH> 4,871
<SECURITIES> 0
<RECEIVABLES> 14,602
<ALLOWANCES> 0
<INVENTORY> 15,362
<CURRENT-ASSETS> 45,156
<PP&E> 805,775
<DEPRECIATION> 276,439
<TOTAL-ASSETS> 605,486
<CURRENT-LIABILITIES> 143,053
<BONDS> 0
0
60
<COMMON> 426
<OTHER-SE> 439,720
<TOTAL-LIABILITY-AND-EQUITY> 605,486
<SALES> 725,650
<TOTAL-REVENUES> 725,650
<CGS> 205,395
<TOTAL-COSTS> 574,761
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 292
<INCOME-PRETAX> 66,407
<INCOME-TAX> 24,579
<INCOME-CONTINUING> 41,828
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 41,828
<EPS-BASIC> 1.07
<EPS-DILUTED> 1.07
</TABLE>
